Charge Lindh with Treason
If John Walker Lindh is not to be charged with treason, then who?

By Victoria Toensing, former deputy assistant attorney general who supervised terrorism cases
February 12, 2002 8:25 a.m.

ohn Walker Lindh may not love America but at his arraignment this week he should express gratitude to Attorney General Ashcroft and his prosecution team. They failed to charge the American Taliban with treason when the evidence was there to do so.

The U.S. Constitution defines treason as levying war against or giving aid and comfort to enemies of the United States. Carrying arms for the Taliban while fighting Americans fits both a legal and common-sense description of that Constitutional charge. Much ado has been made that the Constitution requires two witnesses to testify to the same overt act for a treason conviction to be upheld. That can be done and a Supreme Court precedent of a World War II case tells us how.

Hans Max Haupt was convicted of treason for giving aid and comfort to his son, Herbert, a German saboteur. Haupt's "comfort" was providing bed and board, buying his son a car, and getting him a job in a lens factory.

The Court did not require two German soldiers to swear that they personally observed the father giving comfort. Nor would it require, as some have suggested, two Talibans to aver they saw Walker Lindh carrying out some specific act of war or comfort. The Haupt Court found the testimony of FBI agents who described five nights surveilling the son walk in and out of the father's apartment building sufficient to fulfill the Constitutional requirements: There were always two agents observing the son's movements and, more significantly, the Court could infer there was "comfort" without knowing its exact nature. Was the beef stroganoff hot? Was the bed warm? The Court did not care. It was sufficient that the FBI testimony described an act — going in and out of the building where the father had a residence — from which an inference could be drawn there was comfort going on.

Similarly, Walker's aid and comfort to the enemy or his levying war against the United States can be fulfilled by two Americans testifying they found him fighting with the Taliban, a logical step that stretches no further than the Haupt inference. If the Court assumed the son received comfort just by entering his father's house, it can assume Walker gave aid by marching with the enemy.

Although he was carrying grenades and rifles when captured, it matters not whether Walker ever shot an American or even discharged a weapon. Nor does it matter whether Congress declared war. It is constitutionally sufficient that there is a military conflict where the United States is involved. "[I]f a body of men be actually assembled, for the purpose of effecting by force a treasonable purpose" then any act by the accused, however "minute" or "remote" is treason, according to Chief Justice John Marshall almost 200 years ago.

The talking heads mistakenly surmise that because treason cases are rare, they are difficult. No, they are rare because they can only be brought when we are in a military conflict. The fact that there have been limited time periods when one could "levy war against" the United States does not make the case more difficult when such conflicts do occur.

Others argue that the "poor kid" went off to support a "cause" prior to U.S. involvement. What cause? Walker Lindh did not leave America to overthrow a dictator. He left to hook up with the dictator. "My heart became attached to the Taliban," he declared after capture by the United States military in late November. That's the same Taliban that murdered women in the public square; whacked off the limbs of men accused, but not tried, of petty crimes; denied women employment, health care, and education, and in so doing denied these basic rights as well to the Afghan children. Walker was not joining a higher cause; he was aiding an evil regime.

The argument that the lad only intended to fight the Northern Alliance, not the United States, is contradicted by the evidence. According to the indictment, he knew prior to September 11 that attacks were planned against Americans; after September 11 he was told: "Bin Laden had ordered the attacks," "additional terrorists attacks were planned," and Bin Laden had to be protected against "an anticipated military response from the United States."

How did he feel about America? In his own words via e-mail to his mother: "I really don't know what your big attachement [sic] to America is all about. What has America ever done for anybody?" "I really don't want to see America again." No mistaken intent here.

Although treason can carry a death sentence, it need not. Just like a murder charge, the Justice Department can indict but not ask for the ultimate penalty. Death is not the reason the American Taliban should be charged with treason. No, it is the public-policy rationale: When a person knowingly betrays his country for an evil cause, he should be criminally accused of that heinous act.

Walker Lindh voluntarily joined an entity that killed and maimed innocent civilians. He marched with and carried weapons of war for Talibanal and Qaeda terrorists, and remained after he knew they had attacked America killing thousands. He failed to leave even after October 7, when it was clear they were fighting his own country. If John Walker Lindh is not to be charged with treason, then who?